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The Guardian - US
The Guardian - US
Jessica Glenza

Republican Josh Hawley’s anti-abortion arguments echoed in Alabama IVF case

a man in a suit looks ahead
Republican senator worked on legal team arguing the ‘Hobby Lobby’ case on contraception before the US supreme court. Photograph: Leah Millis/Reuters

Anti-abortion arguments made in the recent controversial Alabama supreme court decision, which led to the shut down of in vitro fertilization (IVF) in nearly half of the state’s clinics, echo those made by the Republican US senator Josh Hawley.

The Missouri lawmaker made similar arguments in 2013 and when he worked on the legal team arguing the “Hobby Lobby” case on contraception before the US supreme court.

Earlier this month, the Alabama supreme court ruled embryos, which are created in the IVF process, are “extrauterine children” in the eyes of the law. The decision thrust fertility treatments in the state into chaos, as clinics and attorneys said the practice of modern reproductive medicine in Alabama might no longer be legal.

The IVF process typically relies on the creation of multiple embryos, fertilized eggs of several hundred cells called blastocysts. Some of those embryos may be discarded during the IVF because of genetic testing, or may not survive the freeze-thaw process of cryogenic storage (used to create embryos for future IVF rounds).

The state supreme court’s decision cast into doubt whether multiple stages of the IVF process were legal, as it appeared doctors could be held liable for “wrongful death” if an embryo failed or was destroyed during routine treatment.

The decision has infuriated doctors across the country and led to confusion that has stopped IVF at three of the state’s eight fertility clinics. In 2021, the state’s two larger programs at the University of Alabama and Alabama Fertility Specialists together performed nearly 900 IVF cycles resulting in 273 pregnancies, according to data submitted to the Centers for Disease Control and Prevention (CDC).

Hawley took office in 2019, unseating the Democrat Claire McCaskill. He is known as a very conservative Christian lawmaker, who notably raised his fist in support of a pro-Trump mob during the January 6 insurrection.

Erin Hawley, the senator’s wife, has become a conservative legal force, and was on the team of attorneys who helped overturn Roe v Wade, the nearly 50-year-old precedent that once protected the right to terminate a pregnancy, and which paved the way for Alabama’s recent court decision.

In 2013, Hawley authored an opinion article in Missouri’s Springfield News-Leader that criticized a federal decision requiring employers to provide access to contraception through health insurance. In the article, Hawley said the morning-after pill, “may induce an abortion by preventing implantation of a fertilized egg”, in effect the same logic accepted by justices at the Alabama supreme court that led to shutdowns of IVF.

Doctors do not consider a person pregnant until both fertilization and implantation occur. For that reason, contraception is not considered “abortifacient”, because there is no pregnancy. In fact, the morning-after pill works “before release of an egg from the ovary”, according to the US Food and Drug Administration.

Separately, Hawley served as a member of the legal team that argued the Hobby Lobby case before the US supreme court from 2011 to 2015. In that case, Hawley and others on the team argued that private companies should not be required to cover birth control methods that were “more like abortifacients” because, they alleged, the contraception prevented an embryo from implanting in the uterus wall.

Religious-affiliated, anti-abortion attorneys are already attempting to use the Alabama supreme court’s decision to advance a similar argument in Florida. Liberty Counsel said in a statement that it used Alabama’s decision as a precedent to argue against a proposed ballot initiative in the state. The ballot initiative asks voters to protect abortion rights.

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